PEAC Scores Big for Water Quality and Salmon

February 29, 2012

We are thrilled to announce that PEAC attorneys Allison LaPlante, Dan Mensher and Dan Rohlf received a ruling yesterday from federal district judge John Acosta in a significant case about Oregon’s water quality. The court ruled that the U.S. Environmental Protection Agency (EPA), the National Marine Fisheries Service (NMFS) and the Fish and Wildlife Service (FWS) violated their duties under the Clean Water Act and Endangered Species Act in approving certain Oregon water quality standards for temperature, and in turning a blind eye to exemptions within Oregon’s rules. The ruling is a major victory for water quality in Oregon and the many imperiled species of salmon who call our rivers their home. Today’s ruling also has the potential to set significant national precedent regarding these federal agencies’ roles in overseeing state water quality programs.

Read on for more on the case history and the ruling for those interested in a few details:

An astonishing 12,000+ miles of rivers and streams in Oregon have become too hot for the long-term survival of threatened and endangered salmon, steelhead, and bull trout. These fish require cold water to survive. The high water temperatures are caused by poor land management practices, dams, pollution, and flow alterations. Under the Clean Water Act, states are required to set water quality standards - or goals - for their waterbodies to protect all of the “uses” of the waterbodies. In Oregon, salmon and bull trout spawning, rearing and migration are critical “uses” of many waterbodies.

Unfortunately, the Oregon Department of Environmental Quality (“DEQ”) and the federal agencies overseeing Oregon’s water quality program have hindered the restoration of cool water temperatures by adopting inadequate water quality standards. These standards are far too weak and in significant cases allow water temperatures to rise to a level that is lethal to these now-fragile fish species.

In December 2005, Allison LaPlante and then-PEAC professor Melissa Powers filed suit on behalf of Northwest Environmental Advocates (headed by Distinguished Alumnus, Nina Bell) challenging the federal agencies’ actions and inactions on Oregon’s standards. After many disputes about the completeness of the agencies’ administrative records, and after prevailing on several key preliminary issues in the case, we finally filed our arguments on the merits of the case in 2010 and 2011. The briefing involved a massive effort by our attorneys and law students, who pored over hundreds of thousands of pages of documents. In December 2011, we had a three-hour long oral argument, during which the judge asked numerous questions of all counsel.

Yesterday Judge Acosta issued a 51-page opinion on the parties’ cross motions for summary judgment. Some of the court’s most significant rulings include:

EPA violated its mandatory duty under the Clean Water Act by failing to review Oregon’s provisions that exempt “nonpoint sources” (logging, grazing, agriculture) from compliance with temperature water quality standards. The court explained, “Given that many temperature impaired waters in Oregon are impaired in whole or in part by nonpoint sources of pollution, the challenged provisions could present a considerable obstacle to the attainment of water quality standards[.]” The court went on to hold that “The EPA cannot choose to review and approve water quality standards while ignoring separate provisions which have the potential to cripple the application of those standards.”

EPA’s approval of Oregon’s “Natural Conditions Criterion” was arbitrary and capricious. This provision effectively overrides water quality goals for a waterbody any time the state determines a particular waterbody “naturally” had a higher temperature. This provision is another exemption that swallows the rest of the standards. The court ruled that the Natural Conditions Criterion “attempts to restore one aspect of Oregon’s historical water conditions (higher temperatures in some waterbodies) without restoring the other conditions that allowed [salmon] to thrive,” and that EPA should not have approved a criterion like this when the process of estimating historic conditions of a waterbody is “a process rife with uncertainty.”

The expert fish agencies’ (NMFS and FWS) biological opinions regarding the effects of EPA’s approvals on threatened and endangered species were arbitrary and capricious. The court ruled that the agencies’ analyses were fundamentally flawed because they did not consider that river temperatures may impact certain species (such as those with very small population sizes) more than others. The court also ruled that certain decisions the agencies made appeared to be tainted by consideration of policy and feasibility rather than science.

Though we did not win on every claim in the case, the court’s ruling is nothing short of a resounding victory. We hope the court’s ruling will result in improved conditions for imperiled fish in Oregon and set positive legal precedent that will benefit the environment beyond our borders.